ILS, Law

Writing assignment #3

Answer each question as completely as possible. Please use times new Roman, 12-point font, double spacing, one-inch margins.

There is no page limit but answer all questions as thoroughly as possible.

If you have any questions about the assignment, please email me. All work must be your own.

Please proofread and organize your answers.

You will not need to do outside research for this assignment.

You do not have to include the questions in your paper in addition to your answers. However, please number your answers.

Grading:

Formatting

Organization and proofreading

Question 1

Question 2

Question 3

______________________

Question set number 1

Contractor, Inc. was the general contractor for a construction site in Memphis. Contractor, Inc. managed all aspects of construction of a new hospital.

Contractor, Inc. hired Mo Kellerman, Bobby Samuels and Robert Vick to operate a temporary elevator on the site. All three were African American.

Jim Nelson, who is white, directly supervised the elevator operators.

The Problem

The three elevator operators began working at the site as an elevator operator in September 2019. Shortly thereafter, other workers at the site called Kellerman a "monkey" and a "n***** [racial epitaph]." Kellerman also saw racist graffiti in the portable toilets, including the word "n*****," the phrase "n*****s have to leave," and "a depiction on the toilet walls of a white person holding a shotgun and shooting a black person."

Samuels also heard workers refer to the operators as "n*****s" and "black motherf_____s."

Although Samuels called Nelson each day to report these incidents, Nelson merely told him to tell Nelson’s superiors about them.

Other Construction, Inc. workers subjected Robert Vick to racial comments "every single day" after he began work at the Construction site. When the workers thought that Vick took too long to pick them up in the elevator, they would call him racial slurs over the walkie-talkie. A different Construction, Inc. manager could hear the slurs over the walkie-talkie, but apparently did nothing about them.

One day in October 2019, Vick came to work using crutches for a broken leg. A Construction, Inc. supervisor told him to "get the hell off my jobsite" and that "[y]ou n*****s always think you are heroes."

Vick called Nelson, who told Vick that "there was nothing he could do" about it. Vick was fired and never rehired.

On September 29, 2019, while Kellerman was operating the elevator, someone threw liquid from a porta-potty onto his arms and into his eyes, which immediately began to swell.

Kellerman told Nelson about the incident and said that he needed to go home to clean himself. Kellerman returned to work on October 1, 2019. Later that day, he had an altercation with another employee. Someone reported the incident to Nelson, who went to investigate. When Nelson arrived on the scene, another employee admitted to using racial slurs towards Kellerman. Neely sent Kellerman home to "calm down."

After the September 29th incident, Construction Inc, executive Mike Robbards wanted to fire Kellerman and Samuels. Robbards told Neely, that the employees “did not exhibit what I wanted them to exhibit.” Robbards told Kellerman, Samuels, and Neely that when "people come on the job, and see tension between individual employees that work for us . . . or work, you know, under our direction . . . I think you've got to change that."

Robbards took no action at that time, but on October 8th, Construction, Inc. also distributed a document—entitled "Elevator Operator Responsibilities"—which outlined the operators' work hours, breaks, and duties. It prohibited elevator operators from using a telephone.

Two days later, Construction, Inc. fired Kellerman for using his cell phone while on the job.

Samuels remained at the site but continued to hear racial slurs every day. He left the site when Construction, Inc, discontinued using the elevator in late 2020 and his services were no longer needed.

Assume for purposes of this question that all of the elevator operators are employees, that Construction, Inc. operates in interstate commerce and has 15 plus employees, and that the employees properly filed their actions in a timely way before the EEOC and were given right to sue letters.

The Law

The elements of the prima facie case of disparate treatment are:

The employee is in a protected class.

The employee was qualified for the position.

The employee was suffered an adverse employment action -- in other words, the applicants was not hired, or the employee was not promoted or was fired. 

Evidence strongly suggested that the adverse employment action occurred due to the employee’s status in a protect class. For example, employee outside of the protected class was selected for the position, or the employer continued to look for candidates. Or an employee who claims she was not promoted because she was a women could show that a man was promoted instead, or that the company continued to look for internal candidates after rejecting her. 

The elements of the prima facie case of hostile work environment:

The employee is in a protected class.

The employee was qualified for the position.

The employee was subject to unwelcome harassment, that is severe and pervasive and directed at the employee.

The harassment unreasonably interfered with the employee’s work performance by creating an environment that was intimidating, hostile, or offensive (under the totality of the circumstances, the behavior was sufficiently severe or pervasive to alter the conditions of employment) [This could include actual termination or demotion.]

The employer is liable for the harassing conduct – the employer tolerated or condoned the alleged conduct, or that the employer knew or should have known of the alleged conduct and failed to take prompt remedial action

The Questions for Question 1

Vick can establish all the elements for a prima facie case of employment discrimination under Title VII based on disparate treatment. Explain how each element is met.

Kellerman can establish all the elements for a prima of employment discrimination under Title VII based on disparate treatment. Explain how each element is met.

The employer, Contractors, Inc., would have a defense to Kellerman’s claim. Explain what that defense is, and whether you believe it is a meritorious defense or pretext. If you think you need more information, explain what additional information would be relevant to help resolve the issue.

Samuels would be able to establish the elements for hostile work place harassment. Explain how, in detail. (note, Kellerman could also bring a claim for hostile work place harassment. I am just not asking you to analyze the merits of his claim for purposes of this question.)

Question set number 2

Kami Ellery quit her job after 15 months as a salesperson for an Industrial employer.

She alleged she had been subjected to constant sexual harassment by one of her supervisors, Tommy Spano.

Spano was a mid-level manager who had authority to hire and promote employees but was not considered a policymaker.

Spano allegedly repeatedly made offensive remarks and gestures that compromised Ellery’s ability to work. Additionally, three times Spano’s comments could be construed as threats to deny her tangible job benefits.

Ellery refused all of Spano’s advances, yet suffered no retaliation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Spano conduct, despite knowing the company had a policy against sexual harassment.

The Questions for Question 2

Explain why this scenario does or does not meet the elements for quid pro quo harassment, which occurs when a person in a position of authority conditions job benefits on the employee’s submission to the harassment, and the failure to comply has a negative effect on the employee’s job status.

Assume Ellery sues for hostile workplace harassment. The employer has a strong defense in this scenario. Explain what it is, and whether you believe the employer would or would not be found liable for violating Title VII.

Question three

Read the following article, with a focus on the passage reprinted below:

https://www.livemint.com/Industry/KBcVjMqer3e46kpPzpRv6I/Some-tech-companies-are-trying-affirmative-action-hiring.html

When tech companies talk about hiring, they often talk about bringing in “the best person possible" and ignoring everything else. For many, “best" has meant the person who’s most technically skilled or who will be shipping code the soonest after they start.

But some are redefining “best" to factor in diversity. At Penny, which builds a chatbot that texts users’ analysis and advice about their spending, chief executive officer (CEO) Mitchell Lee wanted the company’s fifth hire to add diversity to the team. He spent the fall looking for candidates who were different from the four men who already worked there – affirmative action hiring, in his own words.

“When I say affirmative action, I mean I want to be able to see someone’s picture," Lee said. If asked to choose between two hypothetical candidates who are equally qualified for a job at Penny, then he rejects the premise as false: Those two people are not equally qualified. “Somebody with a diverse background and a totally different perspective is more qualified for the position we’re trying to fill, which is expanding upon the collective viewpoint of what Penny has," he said.

Employers seeking to diversify the workplace must be cognizant of not discriminating against the historically privileged groups. This tension is evident in the tech world, as described in the article.

What should these employers do in these situations? For example, should they accept the status quo? Should they adopt the approach taken by Penny? Are there any other alternatives?

Question 3

Explain what you think is the best solution to the lack of diversity problem (that won’t violate Title VII) and be sure to explain your reasoning thoroughly.

1 of 2